Who’s the Ombudsman? Proposed FAR Rule Requires Clarity

When GAO lacks jurisdiction to hear a protest over a task or delivery order, contractors have the right to complain to an ombudsman. Implementation of the ombudsman right, however, has been haphazard at best.

Last week, the DoD, GSA, and NASA–the entities comprising the FAR Council–proposed a rule to help alleviate this issue for IDIQ contracts.

Generally, 10 U.S.C. § 2304c and 41 U.S.C. § 4106 require each head of an agency that awards MATOC or delivery order contracts to appoint “a senior agency official who is independent of the contracting officer” as the “task and delivery order ombudsman.” The position requires the appointee to review complaints from contractors in order to ensure “that all of the contractors are afforded a fair opportunity to be considered” in certain circumstances where the underlying contract falls outside of GAO’s jurisdiction.

Currently, ombudsmen are appointed on an agency-by-agency basis. FAR 16.504(a)(4)(v) requires all IDIQ solicitations which may result in multiple awards, and all other multiple- award IDIQ contracts, to include the ombudsman’s “name, address, telephone number, facsimile number, and email address.” While the FAR Council recognizes that “several agencies created an agency-level contract clause that provides this information to contractors,” not all agencies have, so it can be difficult to track down who an agency’s ombudsman is, let alone find his or her contact information. To that end, the proposed rule first intends to create a clause that will create uniformity across the agencies and provide “contractors with contact information (as a fill-in) for the agency ombudsman” under FAR part 52.

Even if an agency’s ombudsman can be identified with ease, many agencies aren’t clear on what an ombudsman is actually required to do. The proposed rule requires the ombudsman’s responsibilities to be spelled out in each applicable MATOC or IDIQ solicitation. Finally, the proposed rule would provide contractors notice that contacting an ombudsman would “not alter the timelines for other processes in the FAR.”

If a contract will be used by multiple agencies, the proposed rule also provides an alternative clause to be incorporated in these contracts, indicating that the relevant ombudsman is that of the ordering agency. In addition, the proposed rule includes a second FAR clause, requiring agencies to provide their ombudsmans’ information in “solicitations and contracts for the acquisition of commercial items.” The FAR Council does note, however, that ombudsman rules are unlikely to apply to contracts at or below the simplified acquisition threshold since the value of multiple-award IDIQ contracts are usually above the SAT.”

All in all, the proposed rule would be a great step forward for government contractors, allowing them to make use of their right to be heard by an ombudsman more successfully. Stay tuned to SmallGovCon.com to follow the proposed rules progress.